Elie Mystal's commentary on the implications of the SFFA v. Harvard case highlights an emerging focus on K-12 education. The recent Dear John letter from the Department of Education warns schools against using race-based discrimination in admissions, even indirectly through proxies. It stresses that programs must avoid racial considerations disguised as neutral measures, which could jeopardize federal funding. The environment may soon discourage any acknowledgment of race in admissions, raising concerns about how schools will navigate diversity without risking their financial support.
Although some programs may appear neutral on their face, a closer look reveals that they are, in fact, motivated by racial considerations. And race-based decision-making, no matter the form, remains impermissible.
Relying on non-racial information as a proxy for race, and making decisions based on that information, violates the law. That is true whether the proxies are used to grant preferences on an individual basis or a systematic one.
While the word choice here was 'determining' and 'predicting,' the real concern is seeing how long it takes for the government to punish 'acknowledging the mention of race' or some other protected characteristic by proxy.
But when losing federal funding is on the line, is it really worth a school risking accepting an applicant with a background that could be read as having anything to do with diversity?
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